ACSBlog

by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

The controversy over Indiana’s recently enacted Religious Freedom Restoration Act shows the importance of context in understanding a law. The bill signed by Indiana Governor Mike Pence is very similar to the federal Religious Freedom Restoration Act (RFRA) and laws that exist in 19 states. But the timing of the enactment of the Indiana law and the rhetoric surrounding it give every reason to believe that it was intended to allow businesses in Indiana to discriminate against gays and lesbians based on claims of religious freedom. Governor Pence reinforced this impression when on Sunday talk shows he repeatedly refused to deny that it would have exactly this effect.

Governor Pence constantly emphasizes that the Indiana law is much like the federal RFRA signed by President Clinton in 1993. He stresses that nothing within the Indiana law expressly authorizes discrimination against gays and lesbians.

That is true, but Governor Pence and supporters of the Indiana law are ignoring its context. Why is Indiana adopting the law now, 2

5 years after Employment Division v. Smith changed the law of the free exercise clause and 22 years after the enactment of the federal RFRA?

It is clear that Indiana’s goal is to permit businesses to discriminate against gays and lesbians. Last June, in Burwell v. Hobby Lobby, the Supreme Court for the first time held that secular corporations can claim to have a religious conscience and free exercise of religious belief. In fact, the protection of corporations and businesses is much more explicit in the Indiana RFRA than in the federal statute.

The Indiana RFRA comes soon after the decision of the United States Court of Appeals for the Seventh Circuit declaring unconstitutional the Indiana law prohibiting same-sex marriage and soon before the Supreme Court is likely to recognize a right to marriage equality for gays and lesbians. It is telling that repeatedly in his interviews, Governor Pence refused to deny that the Indiana law would have the effect of permitting businesses to discriminate based on sexual orientation. He also was emphatic that there would be no expansion of rights for gays and lesbians on his “watch.”

This is why there are loud protests against the Indiana law and calls for boycotts of Indiana. If Indiana does not mean to allow such discrimination based on sexual orientation, it should amend the law to provide that no one can discriminate against others based on race or sex or sexual orientation or religion based on the statute or on the grounds of religious beliefs.

Governor Pence has refused to say that he favors such an amendment to the law. He can’t have it both ways: either the Indiana law was meant to allow discrimination against gays and lesbians and the vehement objections to it are justified, or the law was not meant to permit discrimination gays and lesbians and it should be amended immediately to say this. Discrimination in the form of the refusal to do business with a person because of his or her religion or race or sex or sexual orientation is wrong whether based on religion or anything else. Until Governor Pence and the supporters of the law recognize this and amend the law to say this, the protests and boycotts are justified.

At Buzzfeed, Chris Geidner reports that Douglas Hallward-Driemeier and ACS Boston Lawyer Chapter Board of Advisors member Mary Bonauto will argue for same-sex marriage before the Supreme Court on April 28.

Garrett Epps writes about how Indiana’s religious-freedom law is different from other religious-freedom laws around the country in The Atlantic.

At Salon, Jenny Kutner reports that Connecticut will bar state-funded travel to Indiana in protest of Indian’s religious-freedom law that many argue will allow LGBT discrimination.

Brandon Smith of NPRreports that in the wake of the controversy, the Indiana GOP has decided to revisit the controversial law.

At the blog for Public Justice, Paul Bland argues that the federal rules on class action litigation should be improved.

Leslie Griffin and Marci Hamilton discuss at Hamilton and Griffin on Rightsthe Supreme Court’s decision to deny cert. on a case involving a church fighting to use a public school for its services.

by David Driesen, University Professor at the Syracuse University College of Law.

In November of last year, a federal district court judge in Utah declared a rule protecting the Utah prairie dog under the Endangered Species Act (“ESA”) invalid as beyond Congress’ Commerce Clause power in People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service. The district court applied Lopez-scrutiny in finding that the Commerce Clause could not regulate takings of the Utah prairie dog, a purely intrastate species, because there was no substantial relation to interstate commerce. The district court also rejected every argument posited by the Fish & Wildlife Service (“FWS”) in holding that takings of the prairie dog to the point of extinction, and the impacts of the takings on the food-chain and ecosystem writ large, did not affect interstate commerce, thus making the regulations protecting the animal unconstitutional. The FWS has appealed this ruling to the United States Court of Appeals for the Tenth Circuit, which will likely hear argument in the fall.

This is not the first case to challenge the ESA’s application to so-called “intrastate species,” and the Courts of Appeal have uniformly rejected such challenges in the past. However, this ruling is important for several reasons. First of all, most species protected by the ESA are located exclusively in one state; an appellate ruling calling into question the constitutionality of intrastate species protection in a circuit with numerous protected species could significantly undermine the ESA. Second, although the judge ostensibly addressed a single rule issued under the ESA, his reasoning constitutes an attack on the Act’s take prohibition, which limits activities harming all protected species. The court’s ruling treats all activities regulated under the ESA as if they were non-economic because this provision does not expressly limit itself to economic activities. If this approach to evaluation of actions implementing the ESA survives, it would imply that the survival of species protected under the Act would depend on inexpert federal judges’ review of science linking a single species to economic impacts, as viewed through the skeptical lens of Lopez. And finally, a ruling upholding the District Court might be interpreted as creating a circuit split leading to Supreme Court review.

Judith E. Schaeffer argues at Slatethat the Supreme Court need only look at Chief Justice John Roberts’ confirmation hearings in order to make its decision on same-sex marriage.

In the Los Angeles Times, David Savage reports that the Supreme Court may hear a First Amendment case that questions “whether a school official’s fear of violence justified disciplining students for wearing American flags on their shirts.”

Michael Li writes at the blog for the Brennan Center for Justice that the Supreme Court has rejected a “mechanical interpretation” of the Voting Rights Act and provided a victory for minority groups in Alabama.

The Editorial Board of The New York Times criticizes the lack of transparency in political spending, particularly the lack of disclosure on which companies are spending the most on elections.

by Steve Sanders. Professor Sanders teaches constitutional law, constitutional litigation, and family law at the Indiana University Maurer School of Law.

Technically, there was little if anything in what Gov. Mike Pence said about Indiana’s Religious Freedom Restoration Act in his ABC News interview Sunday morning that was factually false. But much of what he said was materially misleading, due to his desperation to stay on message and to obfuscate. To understand this crisis for the Pence administration and Indiana, it’s necessary to separate the law of the RIFRA from its politics.

Governor Pence (pictured) was correct that there has been a lot of misinformation about the RIFRA. The blame lies with both its opponents and its proponents, as well as the media. Contrary to what many progressive opponents have asserted, explicitly or implicitly, the bill does not create an immediate license to freely discriminate against gays and lesbians. Nothing in the bill expressly refers to gays or civil rights laws. And so some opponents of the law have done a disservice to reasoned and accurate public discourse.

How does the law actually work? Keep in mind that given the toxic politics that now surround the measure, no large, PR-sensitive business enterprise in its right mind would use it to turn away gay customers or employees. But imagine a small business owner does so, claiming that associating with gay people violates his religious beliefs.

First, the affected victim of discrimination would need to file a civil rights complaint – assuming that he or she lives in one of the dozen or so Indiana cities, such as Indianapolis, where civil rights ordinances actually protect sexual orientation. (In the rest of the state, such discrimination is perfectly legal right now, and Pence wants to do nothing to change that.)

As the next step, the business owner would go to court, invoking the RIFRA and seeking an exemption from compliance with the civil rights ordinance. This is the RIFRA’s central purpose: to force the government to convince a court that a challenged law – any challenged law – is “narrowly tailored” to serve a “compelling” government interest (as opposed to the First Amendment baseline of a rational relationship to a legitimate government interest) when the law is alleged to infringe someone’s exercise of religion. My colleague Daniel Conkle, an expert on RIFRAs, believes it is likely that a gay non-discrimination ordinance would pass this test, and I respect his judgment. And so in the end, the religious business owner might not actually get a pass from complying with the civil rights ordinance.

So why all the fuss? Setting aside the problem that some religious business owners will now think they have a green light to discriminate, the real problem with Indiana’s RIFRA has been less about its substance than its politics – specifically, the motivations of some of its most ardent proponents.